United States v. Evans, 12-6175

• Decision Date: 16 December 2013
• Docket Number: No. 12-6187,No. 12-6324,No. 12-6175,12-6175,12-6187,12-6324
• Citation: United States v. Evans, No. 12-6175, No. 12-6187, No. 12-6324 (6th Cir. Dec 16, 2013)
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KODY EVANS and TOMMIE DUNN, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KODY EVANS and TOMMIE DUNN, Defendants-Appellants.

No. 12-6175

No. 12-6187

No. 12-6324

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED: December 16, 2013

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 13a1030n.06

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TENNESSEE

BEFORE: CLAY, SUTTON, and GRIFFIN, Circuit Judges.

CLAY, Circuit Judge.Defendants entered conditional guilty pleas to charges of armed robbery affecting interstate commerce in violation of the Hobbs Act,18 U.S.C. § 1951, and use of a firearm during the robberies in violation of 18 U.S.C. § 924(c).Defendants conditional pleas preserved their right to appeal the district court's denial of their motion to suppress physical evidence, confessions, and an identification.Defendants now appeal the denial of that motion, claiming that the police search of the apartment where they were found was unlawful, and that all evidence found in the search, as well as the confession and identification, which Defendants claim were directly related to that search, should have been suppressed.For the reasons set forth in this opinion, weAFFIRM the judgment of the district court.

BACKGROUND

A.Factual Background

During October and November of 2008, the FBI Safe Streets Task Force ("SSTF") investigated a group of seven similar armed robberies at hotels in the greater Memphis, Tennessee area.In each of these robberies a woman would enter and speak with the desk clerk, and then a few minutes later, two armed men would enter the hotel lobby while brandishing guns and would demand money from the clerk.In some of these robberies witnesses said that the robbers drove a red Chrysler Sebring, and in others the witnesses reported that the robbers drove a silver Chevrolet Malibu.In some of these robberies, the robbers also took personal items from the hotel clerks.

Investigator Forrest Bartlett, an officer with the Shelby County Sheriff's Office, was the lead investigator on the robberies and worked with the SSTF.Because he had no leads based on the eyewitness accounts, Bartlett had local television stations broadcast some of the surveillance footage from the robberies to try to get leads on the robbers.One tip that the officers received implicated DefendantTommie Dunn("Dunn"), Lashawnese Jones("Jones"), and a man called "Lil Pete" in the robberies.Further investigation revealed that there was a connection between Jones and Dunn, and that Jones had a red Chrysler Sebring.After confirming that Jones had received a traffic ticket while driving a red Chrysler Sebring, Bartlett prepared photo arrays including images of Jones and Dunn.One of the victims, LaShonne Straughter, identified Jones from the photo array as the woman who had entered the lobby immediately before the hotel where he worked was robbed.He also identified Dunn from a photo array as "the guy that robbed me."(R. 193, Report & Recommendation, Mar. 27, 2012, at 3.)

Another tip identified Jones, Dunn, and a man named Albert Nelson("Nelson") as the people involved in the robberies.That informant told the SSTF that Dunn, Nelson, and Jones lived in the French Village Apartments, in apartment number four ("Apt. #4").Further investigation in online databases suggested a connection between those three and DefendantKody Evans("Evans").The officers then went to the French Village Apartments, "to see if anybody was home," and to "familiarize themselves with the area . . . before they sought a warrant."(Id. at 4.)(quoting hearing testimony, internal quotation marks omitted).When they arrived at the apartments they saw a man and a woman, Nelson and Lakendria Thompson("Thompson"), getting into a silver Chevrolet Malibu.The officers approached the pair, and asked them if they knew where Dunn and Jones were.Nelson and Thompson both said that Dunn and Jones could be found in Apt. #4.Bartlett, while talking to Thompson, noticed a Costco membership card in the car, with the name "Rajeez Shamar" on it, which was the name of one of the hotel clerks who had been robbed.After further questioning, Thompson stated that she"figured" there were weapons in the apartment.When the officers informed Thompson as to their purpose there, Thompson became concerned because her eleven-month-old child was in the apartment with Dunn and Jones.She asked the officers to get the child out of the apartment for her.

The officers then went to the apartment, and after identifying themselves and saying that they were there for the child, they were still refused entry.While continuing to identify themselves as officers, they heard a voice yell "don't open the door," as well as "a lot of scratching noises, like furniture being moved."(Id. at 6.)An officer went to find the apartment complex manager, who gave the police a key to the apartment, but Bartlett was unable to open the door with the key.Aftera few more verbal demands to open the door were refused, the officers kicked down the door and entered the apartment with their guns drawn.

After entering the apartment, the officers saw Dunn and Evans run away from the door.After securing the apartment, the officers searched the adults, Dunn, Evans, and Kirby Evans("Kirby"), for weapons, made sure that there were no other people in the apartment, and searched the immediate area around where they wanted to place Dunn, Evans, and Kirby.Also present was Thompson's child and another child.Kirby identified herself as the leaseholder, and after removing her and Thompson's child from the apartment, Officer Poindexter received written consent from Kirby to search the apartment.

The search of the apartment revealed a pistol that matched the description of one of the guns used in the robbery, which was found in the tank of a toilet, as well as clothing that matched clothes seen in the surveillance videos of the robberies.Dunn and Evans were arrested.Evans declined to make a statement, but Dunn signed confessions to all seven of the motel robberies.Kirby and Thompson also gave statements; Kirby's statement corroborated Bartlett's account of the entry into the apartment, and added that Evans had tried to hold the door closed.She also stated that she had a silver Chevy Malibu, that she was the leaseholder of the apartment, and that she had consented to the search.Thompson stated that she knew that Evans, Jones, and Dunn had been involved in the robberies, and that they had used Jones' red Chrysler Sebring.At a later hearing, Kirby testified that Jones and Evans lived in the apartment with her, and that Dunn was Jones' boyfriend and would sometimes spend the night.She also testified that he had spent the two nights prior to the searchthere, kept some personal effects in the apartment, and that Evans, Dunn, and Jones all helped pay bills for the apartment.

B.Procedural History

Defendants Dunn and Evans were indicted by a federal grand jury in the Western District of Tennessee on December 17, 2008.The twelve-count indictment charged them with robbery in violation of the Hobbs Act,18 U.S.C. § 1951, and with using a firearm in the robberies in violation of 18 U.S.C. § 924(c).Each Defendant was charged with six counts of robbery and six counts of use of a firearm in a robbery, on theories of both principal and accomplice liability.

On October 13, 2011, Dunn filed a motion to suppress his confession and the evidence found in the apartment where he was arrested.On November 1, 2011, Evans filed a motion to suppress items found in the apartment, and to suppress the admission of an identification made via a photo array.On March 27, 2012, a magistrate judge recommended that the motions be denied.The district court adopted the magistrate's report and recommendation on May 13, 2012.

On May 15, 2012, Defendants entered conditional pleas of guilty, which allowed them to appeal the district court's denial of their motion to suppress.On September 18, 2012, the district court sentenced Dunn to a term of 219 months' imprisonment, and Evans to a term of 164 months' imprisonment.

DISCUSSION

A.Standard of Review

Whether a motion to suppress was properly denied is a mixed question of law and fact.Factual findings are reviewed for clear error, while legal conclusions are reviewed de novo.UnitedStates v. Howard, 621 F.3d 433, 450(6th Cir.2010)."A factual finding is clearly erroneous when, on the entire evidence, we are 'left with a definite and firm conviction that a mistake has been committed.'"United States v. Valentine, 694 F.3d 665, 672(6th Cir.2012)(quotingAnderson v. City of Bessemer City, N.C., 470 U.S. 564, 573(1985)).

B.Analysis

Defendants each raise two grounds upon which they claim the district court erred.Dunn argues that the lower court should have suppressed the evidence found in the apartment and his confession, because the police did not have probable cause to enter the apartment, there were no exigent circumstances justifying a warrantless search,¹ and Kirby's consent to a search could not override his refusal of consent as a presently objecting co-tenant.He further claims that his confession was obtained as a result of this unlawful search, and therefore should have been excluded as fruit of the poisonous tree.Evans argues that the search was unlawful, and that regardless, the police lacked probable cause to arrest him, and that accordingly, the evidence found at theapartment, as well as his post-arrest identification, should have been suppressed.We examine each of these claims in turn.

1.Exigent Circumstances

It is undisputed that the police did not have a warrant to enter the apartment.The government claims that the entry was justified by exigency, and that the officers were given consent for the subsequent search.Defendants claim that the police should not have entered the apartment, and that accordingly, the evidence found during the search of the premises must be...